Richmond Journal of Global Law & Business

Volume 10 | Issue 2 Article 4

2011

Curb Your Enthusiasm: A Note on EmploymentDiscrimination Lawsuits in ChinaJiefeng LUSichuan University Law School

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Recommended CitationJiefeng LU, Curb Your Enthusiasm: A Note on Employment Discrimination Lawsuits in China, 10 Rich. J. Global L. & Bus. 211 (2011).Available at: http://scholarship.richmond.edu/global/vol10/iss2/4

CURB YOUR ENTHUSIASM: A NOTE ONEMPLOYMENT DISCRIMINATION

LAWSUITS IN CHINA

Jiefeng LU*

I. INTRODUCTION

China's legal system continues to struggle with the politicaland social complications of its rapid economic development. One of themore glaring tensions in modern China is the treatment of workers ina capitalist economy nestled within a socialist political system. Re-search on employment discrimination is nevertheless quite a recentphenomenon in China. However, as early as in 2002, I was involved inseveral high-profile anti-discrimination cases and served as a legalcounsel for the plaintiff in one of them. In fact, increasing attention toequal employment opportunity rights and anti-employment discrimi-nation in China was triggered in large part by the emergence of thesegroundbreaking employment discrimination lawsuits early this dec-ade.' Among them, the most pioneering case began in 2002 when theplaintiff, a graduate from Sichuan University, sued the People's Bankof China Chengdu Branch for height discrimination.2 This case wasfollowed by a remarkable Hepatitis-B employment discrimination caseagainst a local government agency in Anhui Province in 2003.1 Otherhigh-profile cases at the time included gender-based discrimination inthe mandatory retirement policies at the China Construction BankPingdingshan Branch in 2005,4 age-based discrimination against the

* LL.B, Sichuan University Law School (China), 2005; LL.M, Temple UniversityBeasley School of Law, 2006; S.J.D. (expected 2011), Temple University BeasleySchool of Law. The author wishes to thank Temple University Beasley School ofLaw Professor Scott Burris for his guidance on writing this paper. Thanks are dueto Mr. Liao Zhongjian and Mrs. Zhou Hongmei for their support and encourage-ment. The author also wishes to give special thanks to Judge Jing Zanyu, JudgeLong Xingsheng, Judge Cao Cheng, Judge Qiu Bingbing, Judge Yu Zhiqiang,Judge Wu Tong, Judge Yuan Zhengying, Judge Xie Guandong and Judge PangZheng for their participation in this study. Temple University Law School Profes-sor Robin M. Nilon and Andrew Lessman provided helpful comments on language.All the translations are the author's own.1 Jiefeng Lu, Employment Discrimination in China: Current Situations and Prin-ciple Challenge, 32 HAMLINE L. REV. 133, 136 (2009)2 Id. at, 140 n.35.3 Id. at 140 n.364 Id. at 141 n.37

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Ministry of Personnel of the State Council in 2006,' and physical ap-pearance-based discrimination against an education investment groupin Shanghai in early 2007.6

While many of these cases turned out to be a substantial bur-den to the defendants-especially when the discriminating defendantwas a government agency- they have attracted enormous scholarly at-tention.' They were acclaimed to have been instrumental in promot-ing the anti-discrimination cause in Chinese society and proof ofgroundbreaking achievement in the history and development of Chi-nese constitutional law. For example, the height discrimination casewas lauded as China's "First Constitutional Equal Rights Case"' and"China's Marbury v. Madison."' These cases have also stimulated in-tense scholarly discussion about employment discrimination and itsregulation in the Chinese workplace, as evidenced by the increasingnumber of publications in recent years on the subject matter.10 Theconcept of workplace equality and an end to workplace discrimination,

5 Id. at 141 n.386 Id. at 141 n.397 The scholarly attention can be judged from the large volume of publications de-voted to employment discrimination in China in recent years, see infra note 10.8 See ZHOU WEI, CONSTITUTIONAL BASIC RIGHTS AND THE JUDICIAL REMEDY (Chi-nese People's Public Security University Press 2003).9 See Michael C. Dorf, What a Chinese Height Discrimination Case Says AboutChinese (and American) Constitutional Law, FINDLAW.COM (May 26, 2004), http://writ.news.findlaw.com/dorf/20040526.html.10 See e.g. ZHOU WEI, EMPLOYMENT DISCRIMINATION IN CHINA: LEGISLATION ANDREALITY, (China Law Press 2006); Xiao Zesheng, The Physique Classification inCheck-up of Civil Servant and the Equal Right to Hold Public Office, ADMIN. L.REV., Issue 2 (2005); Zhou Wei, Height Discrimination in Urban Employment,EAST CHINA U. or POL. SCI. AND L.J., Issue 4 (2008); Zhou Wei, Research on SexDiscrimination in Employment of City and Towns in China, POL. SCI. AND L., Issue4, 2008; Li WEIWEI AND LISA STERN, EMPLOYMENT DISCRIMINATION: INTERNATIONALSTANDARDS AND NATIONAL PRACTICE (China Law Press 2006); Xie Zengyi, On TheAnti-Employment Discrimination Act In England And The Legislative Improve-ment In China, LAw Sci. MAG., Issue 5 (2008); Zhang Mingfeng, Affirmative Ac-tions in Canada and Their Implications to China, LEGAL Sci. MONTHLY, Issue 7(2006); Li Weiwei, Non-discrimination Principle in International Human RightsLaw and Its Application in China-The Canadian and Australian LegislationMode as A Reference, LAW Sci. MAG., Issue 4 (2003); CAI DINGJIAN AND ZHANGQIANFAN, EMPLOYMENT DISCRIMINATION OVERSEAS: LAW AND PRACTICE ( China So-cial Science Press 2007); Rao Zhijing, British Institutions and Practice on Anti-discrimination Law in Employment, HEBEI L.Sci., Issue 11 (2008); Li Ao, Study onSexual Discrimination Cases in US, LAW REV., Issue 6 (2008); Xie Zengyi, A Com-parative Study of Employment Discrimination Between U.S.A. and U.K, PEKING U.L.J., Issue 4 (2008); Wu Jinsong, A Study on America's Gender Bias in Occupa-tions, JURISTs REV., Issue 3 (2004); Mao Ling, A Research on Canadian Anti-Work-place-Sexual Harassment Law, ORIENTAL L., Issue 2 (2006); CAI DINGJIAN, THE

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in addition to anti-discrimination enthusiasm, stirred hopes for a moreequal Chinese society both within the country and abroad."

Even more exciting was the fact that, in response to demandsfrom the civil society on regulating employment discrimination,China's legislature enacted new laws that prohibited certain kinds ofdiscrimination in the workplace. Among them was an important pieceof legislation, the Employment Promotion Law of the People's Republicof China, which was issued and took effect in 2007.12 This law prohib-its discrimination based on ethnicity, race, gender, religious belief, mi-grant-worker status, and carrier-of-an-infectious-disease status.' 3 Inaddition, provisions in existing Chinese laws, such as the Constitution,the Labor Law, and the laws for women and people with disabilitieshave now been more frequently interpreted as components of a Chi-nese anti-discrimination legal regime.'" On August 28, 2005, China'stop legislature, the Standing Committee of the National People's Con-gress of People's Republic of China, also ratified the Discrimination(Employment and Occupation) Convention (No.111).'

Despite increased attention to the anti-discrimination issue inChina, people might be easily misled by a few high-profile cases andthe burgeoning scholarly interest in anti-discrimination and believethat employment discrimination is being seriously and effectively

EMPLOYMENT DISCRIMINATION IN CHINA: CURRENT CONDITIONS AND ANTI-DISCRIMI-

NATION STRATEGIES (China Social Science Press 2007).11 The China Law Center of Yale University Law School, University of Oslo Nor-wegian Center for Human Rights, and Utrecht University School of Law of theNetherlands were among those foreign entities that involved, sponsored, and coop-erated with their Chinese counterparts in conducting anti-discrimination law re-search in China.12 See Zhong Hua Ren Min Gong He Guo Jiu Ye Cu Jin Fa [Employment Promo-tion Law of P.R.C.] adopted at the 29th session of the Standing Committee of theTenth National People's Congress of the People's Republic of China on August 30,2007, promulgated and effective as of January 1, 2008, available at http://www.gov.cn/flfg/2007-08/31/content_732597.htm.13 See Id.14 Lu, supra note 1.15 The 17th session of the Standing Committee of the Tenth National People'sCongress decides to ratify the Convention concerning Discrimination in Respect ofEmployment and Occupation (1958) adopted at the 42nd conference of the Inter-national Labor Organization on June 25, 1958, and simultaneously declares thatbefore the Government of the People's Republic of China gives a separate notice,the Convention concerning Discrimination in Respect of Employment and Occupa-tion (1958) doesn't apply to Hong Kong Special Administrative Region of the Peo-ple's Republic of China for the time being. See Decision of the Standing Committeeof the National People's Congress about Ratifying the Discrimination (Employ-ment and Occupation) Convention, 1958, available at http://wwwl.www.gov.cn/gongbao/content/2005/content_77787.htm (last accessed July 2009).

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dealt with through the Chinese legal system. The undeniable fact isthat eight years after the hailed high-profile height discriminationcase and five years after China signed the International Discrimina-tion (Employment and Occupation) Convention, discrimination is stillprevalent in the Chinese workplace."e Furthermore, despite the roleprevious litigation played in unleashing enthusiasm about the anti-discrimination movement, litigating employment discrimination stillis an unpopular proposition in China. Official statistics on employ-ment discrimination cases in China are largely unavailable, and thenumber of such lawsuits appears to be trivial. What's more, up to thispoint, there are no high-profile employment discrimination cases ontrial or appeal on a national or provincial level. Such cases that are onthe dockets of lower courts are believed to be trivial as well. The num-ber of employment discrimination cases coming to the court is so insig-nificant that the category of "employment discrimination lawsuit" hasnot been included as such in the civil litigation system by the ChineseSupreme People's Court."

This article is among a series where I will address Chineseanti-discrimination in employment issues. Based on a survey adminis-trated to judges from different courts in China, I argue that employ-ment discrimination lawsuits are considered trivial. Despitecontinued employment discrimination in the Chinese workplace, fewdiscrimination cases are coming to Chinese courts. In spite of the en-thusiastic anti-discrimination movement in China and despite the re-cord-setting volume of laws and regulations prohibiting employmentdiscrimination," employment discrimination litigation remains un-popular and politically sensitive in China.

Part II of this paper discusses the survey to the Chinese judgeson employment lawsuits, including the survey's methodology, results,and limitations. Part III analyzes the survey results and argues thatthe employment discrimination lawsuits are trivialized due to theircultural and political sensitivity and the inconsistencies in the laborlaw system itself. The latter in particular has impeded people's effortsto file discrimination lawsuits in courts. Part IV concludes and pro-

16 For various forms and manifestations of employment discrimination in the Chi-nese workplace, see Lu, supra note 1.17 The most authoritative guideline on what kinds of civil cases courts can hear,the Regulation on Cause of Action in Civil Litigation issued by the Supreme Peo-ple's Court of China, has not yet listed employment discrimination as a category ofcivil litigation. The Regulation on Cause of Action in Civil Litigation was issuedby the Supreme People's Court of China on February 4, 2008 and took effective onApril 1, 2008.18 See Jiefeng Lu, Tackling the Conceptual Barrier and the Institutional Barrierin Dealing with Employment Discrimination in China: A New Approach (a work-ing paper).

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poses measures necessary to encourage people to challenge discrimina-tory employment practices through legal channels.

II. A SURVEY ON EMPLOYMENT DISCRIMINATION LAWSUITS IN CHINA

The arbitrary and widespread discrimination people have facedin the Chinese workplace is now well documented." Early employ-ment discrimination cases that later turned out to be unexpectedlyhigh-profile cases have led people to believe that the Chinese judiciarycould play a positive role in promoting the anti-discrimination causesin China.2 0 The courts' decision to grant judicial review on these un-precedented cases indicated that Chinese courts would not always actas conservatively as they had been believed to be and criticized for.However, years later, questions remain: Are the courts really assum-ing their role in the anti-discrimination cause as expected? Are therecases decided by the courts with rulings that prohibit employment dis-crimination, provide a remedy to victims, and deter future offenses ofdiscrimination? Is the enthusiasm towards anti-discrimination merelya reflection of some people's wishful thinking, or proof of the issue be-ing undertaken seriously in China?

A. Motivations

As previously mentioned, employment discrimination fre-quently occurs in the Chinese workplace. Therefore, one would rea-sonably think that there should be a significant amount ofemployment discrimination litigation in Chinese courts; unfortu-nately, official statistics on employment discrimination lawsuits in

19 Publications recording various forms of employment discrimination takingplace in the Chinese workplace are plentiful both in China and abroad. For a de-tailed discussion on forms and manifestations of employment discrimination in theChinese workplace., see Lu, supra note 1. For other publications discussing therampancy of employment discrimination in China, see, e.g., ZHOU WEI, EMPLOY-MENT DISCRIMINATION IN CHINA: LEGISLATION AND REALITY (CHINA LAW PRESS2006); CAI DINGJIAN, THE EMPLOYMENT DISCRIMINATION IN CHINA: CURRENT CONDI-TIONS AND ANTI-DISCRIMINATION STRATEGIES (China Social Science Press 2007);Zhou Wei, On the Age Discrimination in Employment of Our Country: An Empiri-cal Study of 300,000 Advertisements for Employees in Shanghai and Chengdufrom 1995 to 2005, 3 J. POL. ScI. & L. FORUM 13, 13-21 (2007); Xun Zeng, Enforc-ing Equal Employment Opportunities in China, 9 U. PA. J. LAB. & Evr. L. 991(2007); Allison J. Wells, Chinese Women Experience A Negative Side Effect of theGrowing Private Sector in Gender-Based Employment Discrimination, 6 IND. INT'L& Comp. L. REv. 517, 518 (1996).20 This author served as one of the legal councils for the plaintiff in a Hepatitis Bdiscrimination case. Before the court officially accepted the case, we had concernsthat the court might refuse to grant judiciary review on the matter because thedefendant is a local government agency. See Lu, supra note 1, at 2.

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China are currently not available. Regardless of the availability of of-ficial statistics, judges from Chinese courts should be aware of thesecases, if any exist. Motivated by the desire to obtain an initial reporton the number of employment discrimination cases courts hear eachyear, this author directly contacted certain Chinese judges to conducta convenience survey on employment discrimination cases. This au-thor was able to directly contact Chinese judges thanks to the networkthey established after taking part in a number of China Rule of Lawprograms at Temple University's Beasley School of Law. The BeasleySchool of Law has a longtime cooperative relationship with TsinghuaUniversity's School of Law in Beijing, involving a number of academicChinese Rule of Law development programs. 2 1 As early as 2000, Tem-ple University entered into a cooperative agreement with the SupremePeople's Court of China to conduct judiciary training for Chinesejudges. Since then, over 300 Chinese legal professionals throughoutChina have completed the three-month program at the National Judi-cial Training College in China, and many have participated in a subse-quent month-long intensive summer training program in the UnitedStates. 22 From 2005 to present-day, this author has participated asthe deputy director and chief interpreter in many judiciary educationprograms, and has established fruitful personal relationships withmany judges throughout China, making this survey possible.

B. Chinese Courts and Employment Discrimination Lawsuits:General Information

The structure of the Chinese judicial system has four levels ofcourts, with at most two trials conducted to complete a case.2 3 Thefour levels of courts are, from the lowest to highest, the basic People'sCourts, the Intermediate People's Courts, the High People's Courts,and the Supreme People's Court.2 4 The basic People's Court adjudi-cates ordinary criminal and civil cases of the first instance.2 5 The In-

21 In 2009, the U.S. Senate passed a Resolution, No. 280, to celebrate the 10-yearanniversary of Temple's rule-of-law program in China. S. Res. 280, 111th Cong.(2009), available at http://www2.law.temple.edulservlet/com.rnci.products.DataModules.RetrieveAttachment/CongressionalRecord_155 134/?server=templelawdb&dbname=templelaw&site=templeLaw&sction=internationalattachments&article=1&filename=CongressionalRecord_155_134.pdf.22 See id.23 See Organic Law of the People's Courts of the People's Republic of China,adopted at the Second Session of the Fifth National Congress on July 1, 1979,promulgated by Order No. 59 of the President of the People's Republic of China onOctober 31, 2006, and effective as of January 1, 2007, arts. 2 and 12 (LEXIS 2006China Law 8786).24 Id. at art. 2.25 Id. at art.21.

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termediate People's Courts have jurisdiction over cases of firstinstance as provided by law, cases of first instance transferred fromthe basic People's Courts, and appellate cases. 26 The High People'sCourts have jurisdiction over cases of first instance assigned by law,cases of first instance transferred from lower courts, and appellatecases.2 7 The cases of first instance assigned by law are usually thosecases that have significant impact on a particular area's jurisdiction.2 8

The Supreme People's Court has jurisdiction of first instance overcases assigned to it by law, cases that the Supreme People's Court con-siders it should try itself, and over appeals from High People'sCourts.2 9 The cases of first instance assigned by law are usually thosecases that have a significant impact on the whole country.s0 Depend-ing on the gravity of the case, the trial of first instance can occur atany level in the system, with a final appeal to a court at the nexthigher level. Cases of first instance decided by the Supreme People'sCourt are final.3

The people's courts are generally divided into three divisions:civil, criminal, and administrative. Each division hears the corre-sponding type of cases. Typically, the civil cases involve disputes be-tween individuals and their property. Administrative cases are thosebrought by individuals against government entities that challenge thelegality of administrative actions. Criminal cases are prosecutionsagainst individual or certain entities in violation of the Chinese crimi-nal code. Currently there is no provision in the Chinese criminal codethat imposes criminal liability on employment discrimination viola-tors. Cases claiming employment discrimination are either civil cases,if defendant is a non-government employer, or administrative cases, ifthe defendant is a government employer.

C. The Survey Method and Limitations of the StudyFrom January to March 2010, I conducted a survey of Chinese

judges in different courts aiming to count the number of employmentdiscrimination cases from their jurisdictions. Among those judges with

26 Id. at art. 24.27 Id. at rt. 25.28 See Civil Procedure Law (promulgated by the Standing Comm. Nat'l People'sCong., March 8, 1982, effective October 1, 1982), art. 20, (Lawinfochina) (China).29 See Organic Law (promulgated by the Standing Comm. Nat'l People's Cong.,July 5, 1979, effective January 1, 1980), art. 31, 32 (LEXIS 2006 China Law 8786)(China).30 See Civil Procedure Law (promulgated by the Standing Comm. Nat'l People'sCong., March 8, 1982, effective October 8, 1982), art. 21, (Lawinfochina) (China).31 See Organic Law (promulgated by the Standing Comm. Nat'l People's Cong.,July 5, 1979, effective January 1, 1980), art. 11 (LEXIS 2006 China Law 8786)(China).

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whom I have regular contact, I selected nine judges from nine differentcourts throughout China. These courts are located in seven provincesand one municipal city in China, specifically Zhejiang Province, Hu-nan Province, Anhui Province, Guangxi Province, Guangdong Prov-ince, Liaoning Province, Hubei Province, and Chongqing MunicipalCity. These provinces and the municipal city span geographically fromthe north of China to south, and from east to west. They are economi-cally representative of those most developed provinces (for instance,the Guangdong Province and Zhejiang Province), of the least devel-oped provinces (for instance, the Guangxi Province), and of those mod-erately developed provinces (for instance, the Liaoning Province).These courts are listed as Appendix I at the end of this article.

The survey was designed chiefly to get an approximate numberof cases, if any, filed for employment discrimination claims in each ofthose courts where the judges sit. The survey also intended to com-pare the number of employment discrimination cases with the totalnumber of cases each court has heard in recent years (criminal casesexcluded; currently Chinese law does not impose criminal liability onemployment discrimination offences, thus criminal cases were ex-cluded from the overall number). Because of limited public availabil-ity of the total number of cases heard in recent years (criminal casesexcluded), this question was also incorporated into the survey, underthe assumption that the judge in a particular court has access to themost accurate statistics on the total number of cases the court hearseach year. The survey was composed of two simple questions: (1) howmany employment discrimination cases have emerged in your courtfrom the year 2005 to the year 2009; and (2) what is the total numberof cases your court accepted each year (selecting any two years from2007, 2008, and 2009). The purpose of counting the number of employ-ment discrimination cases from 2005 to 2009 is to expand the scope ofyears so that more cases can be counted. Calculating the total numberof cases the courts take in recent years allows me to compare the em-ployment discrimination cases with all the cases the courts accept.

For purposes of the survey, employment discrimination caseswere defined as any cases, civil or administrative, in which the plain-tiff characterizes the employer's actions or inactions as violations oftheir equal employment rights. Such employer's actions or inactionsinclude refusal or failure to hire the plaintiff, firing or terminating theemployment contract with the plaintiff, paying less or withholdingpayment from the plaintiff, and sexually harassing the plaintiff,among others. The survey was sent out via email in early January2010 to the nine judges in the previously mentioned courts, with thelast response received in early March 2010.

The survey possesses limitations when viewed from the meth-odological point of view. This study intends to draw an initial report

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on the number of employment discrimination cases in China by pollinga convenience sample of judges from different Chinese courts. How-ever, because the survey used a sample that is generated by conve-nience, the results obtained cannot be strictly generalized to the totalnumbers of employment discrimination cases in China as a whole.The sample judges were selected because they are readily availableand convenient to survey. Such a pool of samples are not sufficientlyrepresentative to draw scientific generalizations on the numbers ofemployment discrimination cases courts accepted each year in China.However, it is important to note that the study did not seek to deter-mine the exact number of employment discrimination cases Chinesecourts take each year, but to test the proposition that employment dis-crimination cases have yet to become an important part of the civildocket in Chinese courts.

D. Survey Results

Among the nine judges surveyed, five responded with the spe-cific statistics the survey requested. The other four judges were notable to provide any statistics. Among those four judges who were notable to provide any statistics, one judge did not reply to email solicita-tion (though he confirmed the receipt of the email containing the sur-veyed questions) two judges were not able to provide relevant statisticsbecause their courts refused to reveal any such statistics due to itssensitivity, and one judge responded that he was not able to provideanswers to the surveyed questions due to technical issues. It was in-teresting to note that judges from courts in the wealthier GuangdongProvince were not able to provide any statistics. The courts that werenot able to provide answers to the surveyed questions are listed as Ap-pendix II at the end of this article.

The judge from the Cixi City People's Court of Zhejiang Prov-ince responded with information about two employment discrimina-tion cases from the year 2005 to 2009;32 the judge from the ChangshaCity Intermediate People's Court of Hunan Province responded con-cerning one employment discrimination case from the year 2005 to2009;33 the judge from the Huangshan City Intermediate People'sCourt of Anhui Province reported zero employment discriminationcase from the year 2005 to 2009;34 the judge from the Shapingba Peo-ple's Court of Chongqing Municipal City reported zero employment

32 Data provided by Judge Jing Zanyu of Cixi City People's Court of ZhejiangProvince.33 Data provided by Judge Long Xingsheng of Changsha City Intermediate Peo-ple's Court of Hunan Province.34 Data provided by Judge Cao Cheng of Huangshan City Intermediate People'sCourt of Anhui Province.

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discrimination case from the year 2005 to 2009;15 and the judge fromthe Nanning City Intermediate People's Court of Guangxi Province re-layed that there had been one employment discrimination case fromthe year 2005 to 2009.36 In addition, these judges also provided statis-tics on the total number of cases their court heard within its jurisdic-tion in recent years (select two years in the years of 2007, 2008, and2009) with criminal cases excluded.3 ' The result of the survey hasbeen compiled into Table One as follows:

TABLE ONE: NUMBER OF EMPLOYMENT DISCRIMINATION CASES(2005-2009) AND NUMBER OF TOTAL CASES IN THESE COURTS INRECENT YEARS

Number of Total Number of Total CasesEmployment This Court Hears in

Discrimination Cases Its Jurisdiction infrom the Year 2005 to Recent Years (Criminal

the Year 2009 Cases Excluded)

The Cixi City 10,758 cases in the yearPeople's Court of 2 of 2007; 12,911 cases in

Zhejiang Province the year of 2008The Changsha 13,379 cases in the yearCity Intermediate 1 2008; 14,008 cases inPeople's Court of the year of 2009

Hunan ProvinceThe Huangshan 10,092 cases in the year

City Intermediate 0 2008; 10,883 cases inPeople's Court of the year of 2009Anhui ProvinceThe Shapingba 5,207 cases in the yearPeople's Court of 0 of 2008; 7,606 cases inChongqing the year of 2009Municipal City

The Nanning City 20,223 cases in the yearIntermediate 1 of 2007; 24,064 cases inPeople's Court of the year of 2008Guangxi Province

3 Data provided by Judge Yu Zhiqiang of Chongqing City First Intermediate Peo-ple's Court.36 Data provided by Judge Qiu Bingbing of Nanning City Intermediate People'sCourt of Guangxi Province.3 Criminal cases are excluded from these statistics because there is no criminalliability imposed by the Chinese Criminal Law on discriminatory employmentpractice. See Chinese Criminal Law, available at http//www.chinacourt.org/flwk/show.php?file id=27762.

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The results show that the number of employment discrimina-tion cases from the surveyed courts presents an extremely small per-centage on the entire number of cases these courts hear (criminalcases excluded). The greatest number of total employment discrimina-tion cases from the years between 2005 and 2009 is found in the CixiCity People's Court of Zhejiang Province, representing less than onepercent of its total cases in the years of 2007 and 2008. In addition,the number of employment discrimination cases from 2005 to 2009 inthe Changsha City Intermediate People's Court of Hunan Provinceand the Nanning City Intermediate People's Court of Guangxi Prov-ince is less than one percent of their total cases in recent years. Thesurveyed results found in the Huangshan City Intermediate People'sCourt of Anhui Province and the Shapingba People's Court of Chongq-ing Municipal City showed that there were no employment discrimina-tion cases from 2005 to 2009.3

III. DiscussioN

Although discrimination occurs in many areas of people's lives,the greatest impact of anti-discrimination legislation is probably felt inthe field of employment." As the first Global Report on discrimina-tion, Time for Equality at Work, has emphasized the workplace-be ita factory, an office, a farm or the street-has been a strategic entrypoint to free society from discrimination.4 0 Anti-discrimination legis-lation has been enforced in the United States,4 1 United Kingdom,4 2

Japan,4 3 Australia,4 4 and some other countries for decades. However,in China anti-discrimination in employment was practically a non-is-sue until the aforementioned ground-breaking cases were filed in Chi-

38 I learned through informal chatting with more judges from other courts inChina that employment discrimination cases are very rarely seen in their courts.Most judges commented that they have read news reports about employment dis-crimination cases in some provinces, but have never presided over such a case.3 See Hugh Collins, Social Inclusion: A Better Approach to Equality Issues? 14TRANSNAT'L L. & CONTEMP. PROBs. 897, 901 (2005).40 See ILO: Time for Equality at Work, Global Report under the follow-up to theILO Declaration on Fundamental Principals and Rights at Work, Report 1(B), In-ternational Labor Conference, 91st Session, Geneva, 2003, para. 11.41 See, e.g., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e17(2000); Age Discrimination in Employment Act of 1967, 29 U.S.C. §§ 621-634(2000); Americans with Disabilities Act of 1990; 42 U.S.C. §§ 12101-12213 (2000).42 See e.g., Sex Discrimination Act, 1975, c. 65; Race Relations Act, 1976, c. 74;Disabilities Discrimination Act, 1995, c. 50; Fair Employment and Treatment(Northern Ireland) Order, 1998; SI 1998/3162 (N. Ir. 21).43 See, e.g., Labor Standards Act, Law No. 49 of 1947; Equal Employment Oppor-tunity Law, Law No. 45 of 1985; Child Care and Family Care Leave Law, Law No.107 of 1995.

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nese courts. The significance of these cases has been thoroughlydiscussed by Chinese scholars.4 5 However, the cases - and the atten-tion they brought to the anti-discrimination cause - gave people thefalse impression that the Chinese legal system would take serioussteps to remedy the employment discrimination problem. Reality hasthrown cold water on this premature enthusiasm. Only a trivial num-ber of employment discrimination cases filed in court had their trial ofthe first instance in the basic People's Court. The results reported bythe courts could be extreme outliers, but a number of indicators sug-gest they are more likely to be typical. No national appeals have beenseen thus far. No cases have appeared in High People's Court or theSupreme People's Court for a trial of first instance.4 6 Nor is anyoneeven collecting information on employment discrimination cases. 4 7 Ifthe enthusiasm regarding anti-discrimination is real, where are theanti-discrimination cases?

Despite the limitations of this convenience survey, it providespowerful evidence in demonstrating the unpopularity of employmentdiscrimination litigation in China. It undermines the claim that litiga-tion is assuming an important role in the regulation of employmentdiscrimination in the country. It is also evidence to demonstrate thepolitical sensitivity of such litigation. The survey itself reflects suchsensitivity, as four judges out of nine either refused to answer, or werereluctant to share any statistics on employment discrimination law-suits. 48 People once applauded decisions by courts granting judicialreview on unprecedented employment discrimination lawsuits.4 9

However, in retrospect, the reluctance of the courts to enforce anti-discrimination law against powerful public and private entities is obvi-ous. Particularly when the defending discriminating employer is thegovernment or a government agency, the courts are especially reluc-tant to place a defendant under interrogation for employment discrim-

44 See, e.g., Public Service Act 1999 (Austl.); Human Rights and Equal Opportu-nity Commission Act 1986 (Austl.); Workplace Relations and Other LegislationAmendment Act 1996 (Austl.).45 See Lu, supra note 1, at notes 35-39.46 Cases appear in high people's court or the Supreme People's Court for the trialof first instance must be those major cases that have major impacts on the wholecountry. See Civil Procedure Law of the People's Republic of China, at Art. 20-1,supra note 28.47 Employment discrimination has not yet been included as a separate category ofcivil litigation, according to the Regulation on Cause of Action in Civil Litigationissued by the Supreme People's Court of China, see supra note 17.48 See Appendix II.49 See Lu, supra note 1, at note 2.

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ination claims.5 0 The desire that Chinese courts take moreresponsibility concerning anti-discrimination is only some people'swishful thinking; so far the role of the courts to promote the anti-dis-crimination cause in China is limited.

In addition to the limited role courts assume there are otherchallenges, too. First, a cultural implication exists that Chinese peo-ple usually prefer to avoid litigation, and traditionally lawsuits areviewed as the least preferred resolution for resolving disputes amongpeople." The concept of "harmony" and "no suits" are in general con-sidered as the basic value orientation of traditional Chinese legal cul-ture.5 2 As the founder of Confucianism and a great and influentialChinese philosopher, Confucius said, "To handle lawsuits, I am re-solved to eliminate lawsuits."" As a result of that cultural and tradi-tional influence, many people in China tend to deem lawsuits as a veryunfriendly way to remedy their violated rights, especially when thoseviolations arise in the workplace.5 4 It thus becomes a factor that lim-its the desire of people to bring employment discrimination claims tolegal authorities. Socio-legal scholars have explained such a phenome-non as injurious experiences that do not become grievances and, ulti-mately, lawsuits in the process of emergence and transformation ofdisputes.5 5

Second, the existing rules regulating employment discrimina-tion in China have great inconsistencies, which make it difficult to filean employment discrimination lawsuit. According to the current Chi-nese labor law rules, Chinese workers, except for those who are self-employed, are divided into three large categories: (1) The EnterpriseEmployees, referring to workers employed by enterprises or compa-nies, have employment contracts with their employers, and are regu-lated by the Chinese Labor Law; (2) The Civil Servants, referring tothose who work for the government or government agencies, perform

50 Courts tended to dismiss cases when government agencies were involved as de-fendants, see Jiefeng Lu, Employment Discrimination in China Situations andChallenges, Table Four at page 184, supra note 1.51 See NIALL CROWLEY, AN AMBITION FOR EQUALiTY 1,2 (Irish Academic Press2006) (asserting that culture plays a part in societal views of equality).52 See Zhang Wenxiang, Saqironggui: The Dilemma of Traditional Litigation Con-ceptions-the Intrinsic Logic among "No Suit," "Dropping Suit" and "DisgustingSuit," 22 HEBE L. REV. 3,79-82.53 See The Analects, Chapter 12, Verse 13.54 As noted in the previous paper that it would be not a likely scenario in Chinaeven nowadays that someone would be willing to seek an order from the courtagainst an employer to ask to be hired. See Lu, supra note 1, at 189.s5 See generally William L.F. Felstiner, Richard L. Abel and Austin Sarat, TheEmergence and Transformation of Disputes: Naming, Blaming, and Claiming, 15LAW & Soc'Y. REV. 631 (1980-81).

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public duties according to law, have been included in the state admin-istrative staffing, have wages and welfare borne by the state publicfinances, and are regulated by the Chinese Civil Servant Law; (3) Pub-lic Institution Employees, referring to people employed by public insti-tutions, sometimes come under the regulation of Labor Law, whileothers are covered by Civil Servant Law.s" A different worker statuswill lead to a different approach for possible legal actions one maytake. However, incoherence and contradictions in the relevant regula-tions have presented hardships for employment discrimination claim-ants seeking legal protections and legal remedies." In brief, first, forthe enterprise employees, Chinese labor law prescribes its applicationonly in cases where a contractual employment relationship exists,while most discrimination in China under current conditions emergesin the process of hiring, 8 before the establishment of a contractualemployment relationship between the employer and the applicantsand thus not within the scope of the applicability of the Chinese laborlaw system; second, for the civil servants, the Administrative Proce-dure Law of People's Republic of China excludes government employ-ees from seeking judicial recourse with respect to possiblediscriminatory treatment by government employers; finally, for thepublic institution employees, as far as filing a claim for discriminationis concerned, the problems for public institution employees generallycombine the problems of enterprise employees and civil servants.' 9

Despite hurdles that remain, the enthusiasm surrounding theanti-discrimination movement nevertheless can still be transformedinto a concrete force promoting the anti-discrimination cause in China,if properly guided. The bottom line is the Chinese people must realizethat the only way to effectively curb employment discrimination is toestablish a rule of law by creating a workable regulatory system. Al-though this paper is not about how to design and make such a systemwork-such issues will be addressed in my other papers-there aresome basic aspects which are pertinent to the discussion of this articlethat are worth mentioning. First, Chinese law must be revised tomake it easier for people to challenge discriminatory employmentpractice. Second, the Chinese people must be encouraged to use legalchannels to claim their equal employment rights. To make it easier forpeople to file an employment discrimination lawsuit, China needs firstto distinguish two types of employment discrimination, i.e. discrimina-tion by government employers and discrimination by non-governmentemployers. Discrimination by government employers should be in-

56 See Lu, supra note 1, at 179.5 See Id.58 See Id.so For a detailed discussion, see Lu, supra note 1, at 179.

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cluded in the Chinese administrative litigation system by revising andexpanding the scope of acceptable cases prescribed in the current Chi-nese administrative litigation law. Discrimination by non-governmentemployers should be included in the Chinese civil litigation system byclearly prescribing a protected class in two major laws regulating em-ployment issue in China: the labor law and the employment promotionlaw. The scope of statutory protection should also be expanded tocover discriminatory practice occurring before the formation of a con-tractual labor relationship, for instance, during the process of hiring.To encourage Chinese people to challenge discriminatory employmentpractice, we must properly educate and convince them that discrimi-nation is wrongful, reprehensible, and does not have to be tolerated.Chinese people must further be educated that when discrimination oc-curs, using the weapon of laws to guard their rights by referring dis-criminating practice to legal authorities is necessary and important.Such actions may not only get remedies for their losses but may alsodeter discriminating actors from further discriminating against othersin the future.

IV. CONCLUSION

The enthusiasm surrounding the anti-discrimination move-ment in China is somewhat misleading. Contrary to the heated schol-arly discussion on employment discrimination are these chilling facts:discrimination in workplace is still commonly seen; a trivial number ofcases have been accepted by the Chinese courts; there are no officialstatistics on employment discrimination cases courts accept; and noone is even collecting information on employment discrimination law-suits. In all, employment discrimination litigation remains unpopularand politically sensitive.

Before the current Chinese labor law system fails totally in re-dressing and deterring employment discrimination, the inconsistentprovisions in current Chinese labor law rules must be properly inter-preted by the legislature so that the institutional obstacle can becleared for people to file a lawsuit in court claiming equal employmentopportunity rights. Meanwhile, Chinese individuals must be en-couraged to challenge discriminatory employment practices. Despitethe absence of employment discrimination cases, there is no lack ofemployment discrimination. Under these circumstances, can we saythe enthusiasm about antidiscrimination in China will really makeany difference?

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APPENDICES

APPENDIX I-COURTS SURVEYED

Name of the Court Its Location ProvinceThe Cixi City People's Court Zhejiang Province

The Changsha City Intermediate Hunan ProvincePeople's Court

The Huangshan CityIntermediate People's Court

The Shapingba People's Court Chongqing Municipal CityThe Nanning City Intermediate Guangxi Province

People's CourtThe Shenzhen City Nanshan Guangdong Province

District People's CourtThe Liaoyang Intermediate Liaoning Province

People's CourtThe Dongguan Intermediate Guangdong Province

People's CourtThe Wuhan City Intermediate Hubei Province

People's Court

APPENDIX 11-COURTS NOT ABLE TO PROVIDE DATA

Name of the Court Its Location ProvinceThe Shenzhen City Nanshan Guangdong Province

District People's CourtThe Liaoyang Intermediate Liaoning Province

People's CourtThe Dongguan Intermediate Guangdong Province

People's CourtThe Wuhan City Intermediate Hubei Province

People's Court